State v. Mercer

• Citation: 672 S.E.2d 556
• Decision Date: 12 January 2009
• Docket Number: No. 26582.,26582.
• Parties: The STATE, Respondent, v. Kevin MERCER, Appellant.
• Court: United States State Supreme Court of South Carolina

672 S.E.2d 556

The STATE, Respondent, v. Kevin MERCER, Appellant.

No. 26582.

Supreme Court of South Carolina.

Heard October 7, 2008.

Decided January 12, 2009.

Rehearing Denied February 19, 2009.

Deputy Chief Appellate Defender for Capital Appeals Robert M. Dudek, of South Carolina Commission on Indigent Defense, and Melissa Jane Reed Kimbrough, of Kimbrough & Taggart, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General S. Creighton Waters, all of Columbia; Solicitor Donald V. Myers, of Lexington, for Respondent.

Justice KITTREDGE:

This is a mandatory appeal from a sentence of death. On March 16, 2002, Army recruiter Sergeant First Class Tracy Davis was gunned down outside his apartment in Lexington County, South Carolina. Kevin Mercer (Mercer) was convicted of murder, armed robbery, and possession of a firearm in the commission of a violent crime, and sentenced to death. In his appeal, Mercer challenges: (1) the disqualification of a juror; (2) the exclusion of evidence, both in the guilt and sentencing phases; (3) the denial of his post-trial motion for additional funds to test gloves for gunshot residue; and (4) the denial of his post-trial motion for a new trial based on after-discovered evidence. We affirm.

I.

Prior to his death, Sergeant First Class Tracy Davis (Davis) lived near Columbia, South Carolina, where he served as an active-duty member of the United States Army. He was attached to Fort Jackson where he trained Army recruiters.

On the evening of March 16, 2002, Davis arrived home at approximately 11:30 P.M. to the Raintree Apartments. As was his custom, he backed his vehicle, a white Lincoln Navigator, into a parking spot outside his apartment. According to a witness, after exiting his truck, Davis encountered a man and words were apparently exchanged.

The witness to the encounter was Davis's roommate, Sergeant First Class Clifton Magwood (Magwood). Magwood witnessed the confrontation from an apartment window. Magwood's room is on the second floor of the apartment, and his window looks out over the parking lot. Magwood testified that he heard a disturbance, got out of bed, looked through his blinds and observed Davis with a heavyset man, apparently armed with a handgun, demanding the keys to Davis's vehicle. Magwood saw the robber forcing Davis toward the rear of the vehicle and heard Davis tell the armed man, "All right. I'll give it to you."

Magwood left his vantage point to call 911 and summon help. The 911 call was logged at 11:32 P.M. Shortly thereafter, while running downstairs to help his roommate, Magwood heard a gunshot; he hurried outside to find Davis lying in the bushes near the parking lot. Magwood saw Davis's Navigator leaving the apartment complex. Davis died as a result of a gunshot to the back of the head.

Magwood only saw one individual confront Davis with a gun. Although Magwood only saw the individual from the back, he provided an immediate and detailed description of the assailant to law enforcement. The suspect was described as "a black male"; "broad shoulders"; "heavy build, muscular"; anywhere from 5'11" to 6'2" and weighing "215 to 225." Magwood further described the suspect's clothing as "a dark outfit, could be jean or denim or some type of dark outfit with a dark hat."

Magwood's detailed description of the killer, along with a description of the Navigator, was dispatched to all officers in the vicinity, by way of a "be on the lookout," commonly referred to as a BOLO. Deputy Dennis Stazer of the Lexington County Sheriff's Office responded to the BOLO broadcast by positioning his patrol car (at 11:42 P.M.) at what he believed could be an intercept position on a nearby interstate, I-20. Within minutes, a white Navigator drove past Deputy Stazer's location. Deputy Stazer pulled in behind the suspect vehicle and initiated a traffic stop at 11:50 P.M.

There were two black males in the Navigator, Mercer in the driver's seat and Marcus Thompson in the front passenger's seat. Deputy Stazer utilized his patrol car's "light bar ... to light up the interior of the [Navigator]." Deputy Stazer approached the driver's side and asked the driver (Mercer) for his license and registration. Mercer produced his license, but could not find the vehicle registration. Mercer eventually located a receipt from a car dealership and handed it to Deputy Stazer. The receipt confirmed that the Navigator belonged to the murder victim, Davis. Mercer and Thompson were taken into custody.

Inside the Navigator, a .357 caliber handgun was retrieved from under the driver's seat.¹ Testing matched the handgun to the bullet removed from Davis during the autopsy. Gunshot residue (GSR) testing done on Mercer's hands revealed materials considered to be consistent with GSR, although the test results were not conclusive. Testing done on Thompson's hands resulted in a negative test for GSR. Four gloves (two pairs) were found in Thompson's possession but were not tested for GSR. As Thompson was removed from the vehicle, a plastic bag containing fourteen .357 bullets "fell out of his pants legs."

Mercer matched the detailed description of the assailant furnished by Magwood. Mercer is 5 feet 10 inches tall and weighs 220 pounds.² The officers on the scene of the arrest confirmed that Mercer is a broad-shouldered, muscular individual, consistent with Magwood's description. Mercer was arrested wearing a "dark[,] ... like a denim ... jean jacket outfit"; he was also wearing "a black ... baseball style cap."

Conversely, Thompson is "very slender" and "narrow-shouldered" and weighs about 150 pounds. At the time of his arrest, Thompson was wearing "a black tee shirt that was over a white tee shirt," with the white tee shirt conspicuously sticking out from the black tee shirt. Thompson was not wearing a hat.

Mercer and Thompson were charged with murder, armed robbery, possession of a firearm during the commission of a violent crime, and criminal conspiracy. Based on the State's view of the evidence, Thompson pled guilty to accessory before the fact of armed robbery, and accessory after the fact of murder, and armed robbery; he was sentenced to 28 years in prison. Mercer's charges proceeded to trial with the State seeking the death penalty. Mercer pursued a third-party guilt defense, pointing to Thompson as the shooter. The jury convicted Mercer, with the jury ultimately recommending a sentence of death, from which Mercer appeals.

II.

Mercer raises six issues on appeal, which we place in four categories:

(1) Whether the trial court abused its discretion in finding a juror not death penalty qualified under Wainwright v. Witt.

(2) Whether the trial court abused its discretion during the guilt phase by excluding the testimony of Thompson's attorney "that Thompson was charged as only an accessory after the fact and that he was released on bond."

(3) Whether the trial court abused its discretion during the penalty phase by (a) precluding Dr. John Steedman from opining that a "SPECT Scan" of Mercer's brain revealed an "abnormality"; and (b) precluding Dr. Steedman from offering expert psychiatric opinion testimony.

(4) Whether the trial court abused its discretion in denying Mercer's post-trial motions, one seeking additional funds to test Thompson's gloves for gunshot residue; and a second motion for a new trial based on after-discovered evidence that Thompson confessed to a cellmate that he committed the murder.

III. Juror John Doe³ and Wainwright v. Witt

Mercer claims the disqualification of Juror John Doe violated his Sixth and Fourteenth Amendment rights. We disagree. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court stated that the critical issue regarding the disqualification of a capital juror is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). The Wainwright Court observed that a juror's bias need not be "proved with `unmistakable clarity' ... [because] bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." Id. at 424, 105 S.Ct. 844. Finally, the Wainwright Court noted that "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law ... [and that] is why deference must be paid to the trial judge who sees and hears the juror." Id. at 425-26, 105 S.Ct. 844. It is with this standard in mind that we address whether the trial court abused its discretion in disqualifying Juror John Doe.

We have carefully reviewed the lengthy colloquy involving Juror Doe. While it is possible to cherry-pick certain responses and perhaps conclude that Juror Doe is qualified, a review of the totality of the responses reveals a potential juror vacillating and struggling with his strong convictions against the death penalty. Juror Doe, without hesitation, expressed an ability to impose a life sentence. Conversely, when the trial court asked if the juror could vote for a sentence of death, Juror Doe responded, "I'm not sure, sir."

The State followed the court's questioning by pursuing the same line of inquiry, to which Juror Doe responded that "it's just hard to judge, you know, someone else ... for something that they've done." Following up, the State zeroed in on Juror Doe's reservations, asking whether Juror Doe could sign his name to a death penalty verdict, to which Doe responded, "I don't think so, sir."

Defense counsel attempted to rehabilitate Juror Doe, but without much success. Doe stated he would "try" to consider both options. The trial court...